New McGirt Law Helps Oklahoma Indian Tribal Members With Criminal Cases Dismiss Charges!

Additional details on the McGirt case that affects Oklahoma Indians accused of crimes:

In the McGirt case the US Supreme Court ruled that Indians who are accused of certain crimes on Indian land must be tried in federal or tribal court. But the Oklahoma Court of Criminal Appeals has not yet decided exactly how that will work.

McGirt is a very complicated legal matter. The Ada News did a good job of explaining it in language for non-lawyers. We hope these newspaper stories help you understand the basic situation. Then we will help you with what this means for your specific case.

March 6, 2021 Ada News

(Editor’s note: This is the first in a series of articles about the McGirt ruling. Look for more stories in future editions of The Ada News)

Effects from the landmark McGirt ruling by the United States Supreme Court in July are already being felt in the Ada area, despite the fact that the Oklahoma Court of Criminal Appeals has yet to rule on whether or not the Chickasaw Nation will be reestablished as an Indian reservation.

For information concerning the McGirt v. Oklahoma Supreme Court ruling, see What is McGirt in this edition.

The case indirectly led to the release of two people charged in Pontotoc County with violent felonies, and the dismissing of state charges against a man accused of murder, although he is currently incarcerated on charges in a separate case.

However, it’s possible all of those cases could be picked up and tried in either tribal court or federal court.

Released Jimmy Louis Northcutt Jr., 43, of Allen, and 29-year-old Stephen Jesse Davis of Ada were ordered by Judge Steven Kessinger to be released from the Pontotoc County Justice Center Feb. 8.

Northcutt (described in court documents as an enrolled member of the Chickasaw Nation), was charged with second-degree murder, while Davis (described in court documents as “a member of a federally recognized tribe possessing a quantum of Indian blood”) was charged with child abuse.

Also according to court documents, in October, Kessinger and the court granted the defendants’ motions to dismiss (state charges) for lack of subject matter jurisdiction over alleged crimes committed in Indian Territory.

The court ruled that the motions to dismiss were stayed for 90 days, giving the state time to file appeals.

Kessinger indicated the order to release Northcutt and Davis in February was due to the the fact that the Pontotoc County District Attorney’s Office failed to file a written notice of intent to appeal and designation of record by a certain date (90 days), and, because no warrants or detainers were issued by the Chickasaw Nation nor the federal government.

Sheriff John Christian was not happy about the releases, and is extremely frustrated with the whole situation.

Pontotoc County District Attorney Paul Smith said an assistant miscalculated the due date of the appeals’ filings, and regrets the error.

“An attempt to rectify it by motion was denied by the court, and the orders for release were issued after attempts to encourage the tribal authorities to assert their jurisdiction as well as providing records and information to the U.S. Attorney to seek a detainer and the filing of the formal complaint,” Smith said. “Unfortunately, neither the tribal authorities or the U.S. Attorney believe they are empowered to act until the Oklahoma Court of Criminal Appeals rules in the cases pending on appeal related to whether the SCOTUS McGirt ruling applies to the Chickasaw Nation 1866 Reservation Territory.”

Acting U.S. Attorney for the Eastern District of Oklahoma Christopher Wilson said he is aware of the cases, and has spoken to Paul Smith about them, along with a “number of matters.”

However, Wilson said he cannot currently comment on any specific case.

Wilson said at the appropriate time, the Eastern District will review the cases and determine whether or not the government has jurisdiction, and/or the ability to prosecute.

“We are not in the position at this point to say what cases we are, or are not going to be able to pick up,” Wilson said.

He said if the Chickasaw Nation and other tribal boundaries are reestablished as Indian reservations, the Eastern District, through the Federal Bureau of Investigation, will be collecting information from district attorneys’ offices with a number of cases which are subject to McGirt motions.

“We will evaluate those, and we will make a determination at the appropriate time whether or not we have a federal crime that we can prosecute, or if we can adopt a state crime from prosecutors,” Wilson said. “There are factors that play into that. Generally speaking, we’re looking at major crimes under the Major Crimes Act. And, if the facts support a charge and we have federal jurisdiction to charge a case, we will evaluate it, and likely pick it up.”

That is what the Eastern District has been doing that with the Muscogee (Creek) Nation, Wilson said, since the McGirt ruling.

The list of crimes under the Major Crimes Act includes murder; manslaughter; kidnapping; maiming; felony sexual abuse; incest; felony assault with intent to commit murder, or assault with a dangerous weapon; assault on a person under age 16; felony child abuse or neglect; arson; burglary; robbery; and felony larceny.

Wilson said the Eastern District is in the position of waiting for the Oklahoma Court of Criminal Appeals to issue opinions regarding other reservations (Chickasaw, Cherokee, Choctaw and Seminole).

“At this point, the Supreme Court has ruled in McGirt,” he said. “And, that McGirt decision was specifically regarding the Muscogee (Creek) Nation.”

Case information

Authorities allege Jimmy Northcutt Jr. shot and killed Brian Edward Doherty, 31, in July 2019 at or near a registered marijuana grow operation in the Center community.

Authorities allege Davis physically abused one of his children, an infant, in 2019 which cause the baby to be hospitalized. The injuries, according to a court affidavit, included a severe skull fracture, subdural hemorrhage, multiple injuries to the parenchyma of the brain and multiple retinal hemorrhages of one eye.

Judge Kessinger’s ruling

The following was written by Judge Kessinger concerning Jimmy Northcutt, and this mirrors the information provided in the Stephen Davis case. It is presented verbatim.

“On October 30, 2020 this Court entered an Order Granting Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Over Alleged Crimes Committed in Indian Territory. This Court ruled that the findings of the Order Granting Defendant’s Motion to Dismiss were stayed for ninety (90) days after said Order becomes final. The October 30, 2020 Order would only become final if the State of Oklahoma does not appeal the decision within the time allowed by law or if the Oklahoma Court of Criminal Appeals issues a mandate affirming the Trial Court’s decision. The Trial Court also ordered the Defendant to be detained in the Pontotoc County Justice Center for a period of ninety (90) day after the Order of October 30, 2020 becomes final to allow the State of Oklahoma to communicate with the United States Attorney for the Eastern District of Oklahoma and the Chickasaw Nation to insure time for a warrant or detainer from the proper jurisdiction.

As per the Rules of the Court of Criminal Appeals, Title 22 O.S. Chapter 18, Appendix, §11, Rule 2.1(D):”D. Appeals by the State. The State must give notice in open court of the intent to appeal, and must state the specific authority under which the appeal will be taken in the written notice which must be filed in the trial court within ten (10) days of the District Court’s order sought to be appealed. See Rule 1.2(A)(3). The prosecutor shall also file with the trial court clerk a written notice of intent to appeal and a designation of record as prescribed in Rule 1.14 (C) within ten (10) days from the date the Judgment and Sentence is imposed or the order being appealed is entered. The filing of the notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. A certified copy of the Notice of Intent to Appeal and Designation of Record shall also be filed by the prosecutor with the Clerk of this Court within ten (10) days from the date the Notice is filed in the Trial Court. See Rule 2.5 and Form 13.4.”

The ten (10) day period for the Pontotoc County District Attorney’s Office to file a written notice of intent to Appeal and a Designation of Record ended at 4:00 p.m. on November 9, 2020 when the Pontotoc County Court Clerk’s Office closed its records and business for the day.

As per Rule 2.1(D) of the Oklahoma Court of Criminal Appeals, the filing of the notice of intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal.

The Pontotoc County District Attorney’s Office did not file a written notice of intent to Appeal and Designation of Record in the District Court of Pontotoc County in this case. This constitutes a waiver of the right to appeal by the Pontotoc County District Attorney’s Office.

Since the Pontotoc County District Attorney’s Office waived its right to appeal, the Order Granting Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Over Alleged Crimes Committed in Indian Territory became final on the following day, November 10, 2020 at 8:00 a.m.

On January 27, 2021 the Pontotoc County District Attorney’s Office filed a Petition to Vacate and Motion to Reconsider under Title 12 O.S.§§1031(7) and 1033. In its Petition, the Pontotoc County District Attorney’s Office stated that “with no clarity regarding the applicability of the McGirt v. Oklahoma decision and with the United States Attorney’s Office for the Eastern District taking the position that said decision does not apply to the Chickasaw Nation, that it leaves criminal cases, particularly violent crimes, with no avenue to be prosecuted”. The Petition to Vacate and Motion to Reconsider was argued before the Trial Court on January 28, 2021 and the Trial Court denied the State’s Petition and Motion.

Since the Pontotoc County District Attorney’s Office waived its right to appeal in this case, since the United States Attorney for the Eastern District of Oklahoma and the Chickasaw Nation have not filed a warrant or detainer against this Defendant from its proper jurisdictions and do not intend to do so; as per the language contained in the Order Granting Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Over Alleged Crimes Committed in Indian Territory filed on October 30, 2020; the District Court of Pontotoc County finds that the ninety (90) day period wherein said Order dated October 30, 2021 was stayed, will end on February 8, 2021 at 8:00 a.m.

IT IS HEREBY ORDERED that the Pontotoc County Sheriff’s Office shall discharge and release Jimmy Louis Northcutt, Jr. from the Pontotoc County Justice Center on February 8, 2021 at 8:00 a.m.”

Charges Dismissed

In addition to the release of Northcutt and Davis, it was ruled in October that the state charges against Kalup Born, 22, be dismissed in relation to McGirt, and the state was given 90 days to file an appeal, but, according to the Oklahoma Court of Criminal Appeals, the state “did not timely file,” so his charges were recently dismissed.

However, Born remains incarcerated involving a separate murder charge.

Born was originally charged with the kidnapping and murder of 70-year-old Brenda Carter in 2017. His charges included first-degree murder, assault and battery with a deadly weapon and kidnapping, among others.

He was also recently charged with murder after he allegedly killed another jail inmate in December.

Smith indicated he is fairly confident that the federal government will pick up and prosecute both of Born’s cases.

“In the Born case, I was relying on a court rule providing that the brief be filed 90 days after completion of the trial record,” Smith said. “That had not yet occurred. I apparently missed the rule on filing another document in that case, and I too regret that the OCCA dismissed the appeal. Born was not released as he has other pending charges not yet affected by the appeal or the court rulings. Our District has been inundated with cases to appeal, and the current state of affairs is completely unsustainable. As I said in another appeal Brief to the Court of Criminal Appeals:

“Finally, the Appellant Office of District Attorney for the State of Oklahoma would urge the court to decide these matters with all deliberate haste recognizing the impossibility of the position of the State Trial Prosecutors to proceed inasmuch as the state of affairs is that the Federal Government will not prosecute these Major Crimes Offenses in the Historical Tribal Reservation areas without explicit guidance from the Appellate Federal Courts as to the applicability of the McGirt ruling to the other four (4) Civilized tribes; or the State’s Highest Court of Competent Jurisdiction finding that the 1866 Boundaries of the Seminole, Chickasaw, Choctaw, and Cherokee Nations have not been disestablished. Nor will the same tribal courts act to assume jurisdiction as to major Crimes cases declined by the Federal Authorities in the said Tribal lands or to prosecute other crimes in their tribal lands involving Indians where the State arguable lacks jurisdiction without the same rulings from the Oklahoma Court of Criminal Appeals. Thus, the State District Courts will continue to apply their view of the McGirt analysis dismissing these major Crimes cases for lack of subject matter jurisdiction, resulting in the wholesale release of the most dangerous criminals on an unsuspecting and vulnerable population of citizens in Eastern Oklahoma. This present state of affairs which has existed since July 9, 2020 when the SCOTUS rendered its Decision in McGirt, supra is not sustainable for law enforcement and the results remain catastrophic in application for public safety without this court’s ACTION.”

March 9, 2021 Ada News

After ruling in the case of Krafft v. Oklahoma Feb. 25, two judges on the Oklahoma Court of Criminal Appeals issued their opinions of “McGirt.”

Jacob Patrick Krafft, 38, was convicted of second-degree murder in Tulsa County in 2016 and sentenced to serve 25 years with the Oklahoma Department of Corrections. Krafft — who has 1/16 Cherokee blood — reportedly killed his father, Eric Krafft, in 2016 at their home in Broken Arrow.

Krafft appealed the conviction on the grounds that the crime was committed by an “Indian in Indian Country,” and that the state didn’t have jurisdiction to prosecute him. Also, that his sentence was excessive.

The crime occurred within the Muscogee Creek Nation.

The appeals court — Presiding Judge Dana Kuehn — found that “the ruling in McGirt” applied to the case, and, that the District Court of Tulsa County did not have jurisdiction to prosecute him.

The judgement against Krafft was vacated Feb. 25 with instructions to dismiss.

Four other judges, Judge Robert Hudson; Vice-Presiding Judge Scott Rowland; Presiding Judge David Lewis; and Judge Gary Lumpkin, concurred. However, two of the judges, Lumpkin and Hudson, issued opinions following the case ruling.

The following opinion was issued by Judge Lumpkin:

“Bound by my oath and the Federal-State relationships dictated by the U.S. Constitution, I must at a minimum concur in results of this opinion. While our nation’s judicial structure requires me to apply the majority opinion in the 5-4 decision of the U.S. Supreme Court in McGirt v. Oklahoma,_ U.S._, 140S. Ct.2452 (2020), I do so reluctantly. Upon the first reading of the majority opinion in McGirt I initially formed the belief that it was a result in search of an opinion to support it. Then upon reading the dissents by Chief Justice (John) Roberts and Justice (Clarence) Thomas I was forced to conclude the Majority had totally failed to follow the Court’s own precedents, but had cherry picked statutes and treaties, without giving historical context to them. The Majority then exercised raw judicial power to reach a decision which contravened not only the history leading to the disestablishment of the Indian reservations in Oklahoma, but also willfully disregarded and failed to apply the Court’s own precedents to the issue at hand.

My quandary is one of ethics and morality. One of the first things I was taught when I began my service in the Marine Corps was that I had a duty to follow lawful orders, and that same duty required me to resist unlawful orders. Chief Justice Roberts’ scholarly and judicially penned dissent, actually following the Court’s precedents and required analysis, vividly reveals the failure of the majority opinion to follow the rule of law and apply over a century of precedent and history, and to accept the fact that no Indian reservations remain in the State of Oklahoma.

The result seems to be some form of “social justice” created out of whole cloth rather than a continuation of the solid precedents the Court has established over the last 100 years or more.

The question I see presented is should I blindly follow and apply the majority opinion or do I join with Chief Justice Roberts and the dissenters in McGirt and recognize “the emperor has no clothes” as to the adherence to following the rule of law in the application of the McGirt decision.

My oath and adherence to the Federal-State relationship under the U.S. Constitution mandate that I fulfill my duties and apply the edict of the majority opinion in McGirt. However, I am not required to do so blindly and without noting the flaws of the opinion as set out in the dissents.

Chief Justice Roberts and Justice Thomas eloquently show the Majority’s mischaracterization of Congress’s actions and history with the Indian reservations. Their dissents further demonstrate that at the time of Oklahoma Statehood in 1907, all parties accepted the fact that Indian reservations in the state had been disestablished and no longer existed. I take this position to adhere to my oath as a judge and lawyer without any disrespect to our Federal-State structure. I simply believe that when reasonable minds differ they must both be reviewing the totality of the law and facts.”

The following opinion was issued by Judge Hudson:

“Today’s decision dismisses a second-degree murder conviction from the District Court of Tulsa County based on the Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). This decision is unquestionably correct as a matter of stare decisis. The parties have stipulated that Appellant was a registered member of the Cherokee Tribe at the time of the murder, that he has 1/16th Cherokee blood and the murder in this case took place within the historic boundaries of the Creek Reservation …

Under McGirt, the State has no jurisdiction to prosecute Appellant for the murder in this case. Instead, Appellant must be prosecuted in federal court. I therefore as a matter of stare decisis fully concur in today’s decision.

I write separately to point out that McGirt resurrects an odd sort of Indian reservation. One where the Tulsa metropolitan area dominates the regional economy and provides modern cultural, social, educational and employment opportunities for people on the reservation, regardless of race. Where non-Indians own property (lots of it), run businesses and make up the vast majority of inhabitants. Tulsa itself is a major American city, a reflection of urban sophistication. Where modern skyscrapers tower over a densely populated prairie known throughout much of its history as the Oil Capitol of the World. On its face, this reservation looks like any other slice of the American heartland-one dotted with urban centers, small rural towns and suburbs all linked by a modem infrastructure that connects its inhabitants, regardless of race (or creed), and drives a surprisingly diverse economy. This is an impressive place-a modern marvel in some ways-where Indians and non-Indians have lived and worked together since at least statehood, over a century.

McGirt orders us to forget all of that and instead focus on the failure of Congress to expressly disestablish the Creek Reservation. We are told this is a cut-and-dried legal matter. One resolved by reference to treaties made long-ago with the Creeks dating back to the nineteenth century. Ignore that Oklahoma has continuously asserted jurisdiction over this land since statehood, let alone the modem demographics of the area. McGirt edicts that Tulsa and the counties within the boundaries of the historic Creek Reservation constitute a modern-day Indian reservation and always have.

The immediate effect under federal law is to prevent state courts from exercising criminal jurisdiction over a large swath of Greater Tulsa and indeed much of eastern Oklahoma. But the effects of McGirt range much further. The present case illuminates some of that decision’s consequences. Crime victims and their family members in this and a myriad of other cases previously prosecuted by the State can look forward to a do-over in federal court of the criminal proceedings where McGirt applies. And they are the lucky ones. Some cases may not be prosecuted at all by federal authorities because of issues with the statute of limitations, the loss of evidence, missing witnesses or simply the passage of time. All of this foreshadows a hugely destabilizing force to public safety in eastern Oklahoma.

McGirt must seem like a cruel joke for those victims and their family members who are forced to endure such extreme consequences in their case. One can certainly be forgiven for having difficulty seeing where- or even when-the reservation begins and ends in this new legal landscape, especially in a major metropolitan city like Tulsa. In the present case, Appellant was convicted of murdering his father in a residential neighborhood in Broken Arrow which is a suburb of Tulsa. Today’s decision on its face does little to vindicate tribal sovereignty and even less to persuade that a reservation in name only is necessary for anybody’s well-being. The latter point has become painfully obvious from the growing number of cases before this Court where non-Indian defendants are challenging their state convictions using McGirt because their victims were Indian.

Congress may have the final say on McGirt. In McGirt, the court recognized that Congress has the authority to take corrective action, up to and including disestablishment of the reservation. We shall see if any practical solution is reached as one is surely needed. In the meantime, cases like Appellant’s remain in limbo until federal authorities can work them out. · Crime victims and their families are left to run the gauntlet of the criminal justice system once again, this time in federal court. And the clock is running on whether the federal system can keep up with the large volume of new cases undoubtedly heading their way from state court.”